Boerne is not an establishment case. Nor is it an equal protection case. It is a federalism case protecting state power from federal interference under section 5 of the 14th amendment -- congress must make findings that the state is engaging in serious misbehavior (I know -- too loose a word choice here) before the federal government can act against the state to enforce the substantive provisions of the 14th Amendment -- and even if it makes the requisite findings, the action taken must be congruent and proportional to the harm exposed.
In Boerne, RFRA was a sledge hammer to solve either a non-existent problem or on that should have been swatted with a fly swatter instead. So Boerne is not an establishment clause case. Of course Stevens' concurrence is just that -- a concurrence -- and does not create the rule of the case. Can I reconcile the reasoning of the concurrence with the decision in O Centro --yes, but only because one (Boerne) had protected activity (free exercise) and the other (O Centro) did not (drug use). Steve On Mon, Apr 11, 2011 at 8:08 AM, Andrew Koppelman < akoppel...@law.northwestern.edu> wrote: > In Boerne v. Flores, Justice Stevens declared that the Religious Freedom > Restoration Act was unconstitutional as applied to the states because it > violated the establishment clause. "If the historic landmark on the hill > in > Boerne happened to be a museum or an art gallery owned by an atheist, it > would not be eligible for an exemption from the city ordinances that forbid > an enlargement of the structure. Because the landmark is owned by the > Catholic Church, it is claimed that RFRA gives its owner a federal > statutory > entitlement to an exemption from a generally applicable, neutral civil law. > Whether the Church would actually prevail under the statute or not, the > statute has provided the Church with a legal weapon that no atheist or > agnostic can obtain. This governmental preference for religion, as opposed > to irreligion, is forbidden by the First Amendment." Yet in Gonzales v. O > Centro, he joined a unanimous Court in applying RFRA to limit the reach of > federal law, without a whisper about the establishment clause. > > Any speculations about how these decisions can be reconciled? > > > _______________________________________________ > To post, send message to Religionlaw@lists.ucla.edu > To subscribe, unsubscribe, change options, or get password, see > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > > Please note that messages sent to this large list cannot be viewed as > private. Anyone can subscribe to the list and read messages that are > posted; people can read the Web archives; and list members can (rightly or > wrongly) forward the messages to others. > -- Prof. Steven Jamar Howard University School of Law Associate Director, Institute of Intellectual Property and Social Justice (IIPSJ)
_______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
